IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Flint E. Topping, :

Plaintiff : Case No. 2:11-cv-00727

v. : Judge Watson

Ohio Adult Parole Authority, : Magistrate Judge Abel

Defendant

:

REPORT AND RECOMMENDATION

Plaintiff Flint E. Topping, a State prisoner, brings this action under 28 U.S.C. §1983

alleging that he was illegally placed on post-release control. Plaintiff was sent to the Turtle

Creek Halfway House for allegedly violating the non-existent conditions of release and then

abruptly removed from the halfway house. This matter is before the Magistrate Judge in

accordance the provisions of 28 U.S.C. §636(b)(1)(B) for a report and recommendation on

defendant Ohio Adult Parole Authority's June 14, 2012 motion for judgment on the

pleadings (doc. 35). 

As a preliminary matter, defendant’s June 14, 2012 motion to stay discovery (doc. 36)

is GRANTED.

Motion for Judgment on the Pleadings. In ruling on a motion for judgment on the

pleadings, the Court accepts all well-pleaded material allegations of the complaint as true.

JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir.2007). The Court must then

decide whether the moving party is entitled to judgment as a matter of law. Id. This is the

same standard applied in deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).

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Id.

When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules

of Civil Procedure, a court must construe the complaint in the light most favorable to the

plaintiff and accept all well-pleaded material allegations in the complaint as true. See

Erickson v. Pardus, 127 S.Ct. 2197, 2200 (U.S. 2007) (citing Bell v. Atlantic Corp. v. Twombly, 127

S.Ct. 1955 (2007)); Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995); Roth Steel Prods. v. Sharon

Steel Corp., 705 F.2d 134, 155 (6th Cir. 1982). Although the court must apply a liberal

construction of the complaint in favor of the party opposing the motion to dismiss, see Davis

H. Elliot Co. v. Caribbean Utilities Co., 513 F.2d 1176, 1182 (6th Cir. 1975), a court will not

accept conclusions of law or unwarranted inferences of fact cast in the form of factual

allegations, see Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005); Blackburn v. Fisk Univ., 443

F.2d 121, 123-124 (6th Cir. 1971). In reading a complaint, however, a court will indulge all

reasonable inferences that might be drawn from the pleading. See Fitzke v. Shappell, 468 F.2d

1072, 1076 n.6 (6th Cir. 1972). Because the motion under Rule 12(b)(6) is directed solely to

the complaint itself, see Roth Steel Prods., 705 F.2d at 155; Sims v. Mercy Hosp. of Monroe, 451

F.2d 171, 173 (6th Cir. 1983), the court must focus on whether the claimant is entitled to offer

evidence to support the claims, rather than whether the plaintiff will ultimately prevail, see

McDaniel v. Rhodes, 512 F. Supp. 117, 120 (S.D. Ohio 1981). A federal court cannot consider

extrinsic evidence in determining whether a complaint states a claim upon which relief can

be granted. See Roth Steel Prods., 705 F.2d at 155-56.

To survive a motion to dismiss under Rule 12(b)(6), the allegations in a complaint

“must do more than create speculation or suspicion of a legally cognizable cause of action;

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they must show entitlement to relief.” Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008),

quoting League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir.2007)

(emphasis in original). “Threadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice. Twombly, 550 U.S. at 555.

Arguments of the Parties. In its motion for judgment on the pleadings, defendant

argues that plaintiff’s complaint is barred by the Eleventh Amendment to the United States

Constitution and that this Court lacks proper subject matter jurisdiction over the matter.

Defendant further argues that the Ohio Adult Parole Authority is not a “person” within the

meaning of 42 U.S.C. § 1983, and as result, the complaint fails to state a claim upon which

relief can be granted. Defendants also argue that the Eleventh Amendment bars a suit in

federal court against the state or any of its agencies unless the state has expressly waived

immunity. Because Ohio has not waived its sovereign immunity, the OAPA is immune to

suit in federal court for damages. 

Plaintiff relies on Hernandez v. Wilkinson, No. 1:06-cv-158, 2006 WL 3420186 (N.D. Oh.

Nov. 27, 2006). In Hernandez, the plaintiff brought suit under 42 U.S.C. § 1983 alleging that

the defendants had illegally imposed statutory post-release control when the presiding trial

courts failed to provide for such in the sentencing journal entries. The Hernandez court

concluded that the defendants were entitled to qualified immunity. Plaintiff argues that the

Ohio Adult Parole Authority is not entitled to qualified immunity because its conduct has

violated clearly established constitutional rights. Plaintiff maintains that the rights were

clearly established by Hernandez v. Kelly, 108 Ohio St. 3d 395 (2006).

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Discussion. Plaintiff mistakenly relies on Hernandez v. Wilkinson, No. 1:06-cv-158,

2006 WL 3420186 (N.D. Oh. Nov. 27, 2006). In Hernandez, the plaintiff sued officials of the

Ohio Department of Rehabilitation and Correction and the Ohio Adult Parole Authority in

their individual capacities. Here, Topping has brought suit against the Ohio Adult Parole

Authority, a state agency. Defendant Ohio Adult Parole Authority is not an entity that can

be sued. It is an arm of the state. The State is immune under the Eleventh Amendment from

suits against it. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 65-66 (1989); Foulks v.

Ohio Dept. of Rehabilitation and Correction, 713 F.2d 1229, 1232 (6th Cir. 1993). 

Conclusion. For the reasons set out above, the Magistrate Judge RECOMMENDS

that defendant's Ohio Adult Parole Authority's June 14, 2012 motion for judgment on the

pleadings (doc. 35) be GRANTED.

If any party objects to this Report and Recommendation, that party may, within

fourteen (14) days, file and serve on all parties a motion for reconsideration by the Court,

specifically designating this Report and Recommendation, and the part thereof in question,

as well as the basis for objection thereto. See 28 U.S.C. §636(b)(1)(B); Fed. R. Civil. P. 72(b).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge

and waiver of the right to appeal the judgment of the District Court. Thomas v. Arn, 474 U.S.

140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See also Small v.

Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989). 

s/Mark R. Abel 

United States Magistrate Judge 

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